CHILDREN

Decision to Have Children

Q. Who makes the decision to become a parent?

A. The Supreme Court in Roe v. Wade and other cases has declared that the decision ofwhether or not to have a child is a very personal one and that the decision is protected by theright of privacy under the United States Constitution. This means that individuals who wish tohave a child cannot be barred from doing so (unless perhaps they are incarcerated). Individualswho do not wish to have a child have a legal right to obtain and use contraceptives.

Q. What if one spouse wants children and the other does not?

A. This is a significant emotional issue that, of course, can be very difficult. If one member of themarried couple wants a child and the other does not, that could be a basis for a divorce. Adisagreement on such a fundamental issue could be an “irreconcilable difference” under the nofaultdivorce laws of most states. In states that have grounds for divorce based on someonebeing at fault, a disagreement on the question of whether to have children could be viewed as“mental cruelty,” and thus a basis for ending the marriage.Beyond divorce, remedies are limited. The courts cannot force a pregnant woman to stopthe pregnancy, nor does the law require a wife to have her husband’s permission for anabortion.

Abortion

Q. What is the current status of abortion law?

A. As of the year 2000, women still have a right to an abortion. In the 1992, the U.S. SupremeCourt in the case of Planned Parenthood v. Casey reaffirmed its 1973 decision in Roe v. Wadethat women have a constitutional right to seek an abortion during the early stages of pregnancy.States, however, do have a right to regulate how abortions are performed and states may banabortions after the fetus is viable (able to live outside the womb) unless the mother’s life orhealth is endangered. The scope of regulation and funding of abortions by the government variesfrom state to state. In Casey, the Supreme Court held it was permissible for states to impose a24-hour waiting period on obtaining abortions and to require a minor to have consent of oneparent or a judge for an abortion.

Childbirth

Q. Are there any rules prohibiting parents from having their children born at home?

A. No, at-home births generally are an option for parents. The mother should have goodprenatal care, and she should make sure the health care provider believes the delivery will notpose significant risks to the mother or child. If the delivery is risky for the mother or child, it ismuch better to use a hospital. Some states allow nurse-midwives to deliver children at theparents’ home or at a birthing center. Other states allow nurse-midwives to practice only athospitals or under the direct supervision of a physician.

Q. If the delivery is at a hospital, may the father or a sibling be present?

A. At most hospitals, the father may be present at birth. Hospitals often prefer that the fatherand mother have gone through some training before the delivery. Parents should check with theirhospitals about other rules and about whether siblings would be allowed in the delivery room.

Q. What are the rights of parents?

A. Parents have a right to direct the care, control, and upbringing of their children. This givesthem the power to make various decisions, including where to live, what school to attend, whatreligion to follow, and what medical treatment to obtain.Normally the state may not interfere in these decisions. Only in life-threatening or extremesituations will the courts step in to overrule parents. For example, when a child might die withoutthe medical care that the parents refuse to provide, a judge may make the child a ward of thecourt and order that the care be provided. Parents have been prosecuted for withholdingmedical treatment from seriously ill children. This is true even in situations where parents act outof religious belief.There may be certain medical procedures, however, that the law allows “mature minors”to decide upon for themselves, even if their parents disagree. For example, parents have noabsolute veto power over a minor’s decision to use contraceptives or to obtain an abortion.Parents also have the legal authority to control their children’s behavior and social lives.Children have a duty to obey their parents’ reasonable rules and commands. Parents maydiscipline or punish their children appropriately. They may not, however, use cruel methods orexcessive force; that constitutes child abuse.

Q. What are the legal rights of children?

A. Children have a unique status under the law. This chapter cannot explain this special statusfully. However, it can point out a few of the major differences between the rights of adults andchildren.Most important, children have a right to be supported by their parents. At minimum, thismeans food, shelter, clothing, medical care and education.The law defines children as unmarried persons under the age of majority–usuallyeighteen–who have not left home to support themselves. The law protects children from abuseand neglect. It also entitles them to the protection of the state. Children may be removed fromtheir home if it is necessary to ensure them a safe, supportive environment. This removal may betemporary or permanent.The law allows children to sue. However, in most instances an adult legal representativemust begin the suit.Children accused of committing crimes are subject to the juvenile courts of their state, notthe regular criminal justice system. (In some states, children accused of serious crimes who areabove a certain age—such as thirteen—may be tried in court as adults.) Juvenile courts entitlechildren to only some of the due process safeguards that adults receive. In return, these courtshave more freedom to deal with juveniles in an effort to rehabilitate them.

Q. How long do parents’ legal obligations to their children continue?

A. Parents are legally responsible for their children until they reach the age of majority (usuallyeighteen), marry, or leave home to support themselves. In some states, divorced parents may beobliged to pay for a child’s college education or trade school. In addition, a parent’s duty tosupport a disabled child might continue for the child’s entire life.

WHO CONTROLS THE MONEY CHILDREN EARN OR INHERIT?

Generally, parents do not have unlimited, direct control over their children’s money. If childrenearn or inherit money, that money must be used for the children=s benefit. Some states requirethe appointment of a guardian under court supervision if a child has substantial funds. Unless acourt appoints someone else, parents are the guardians of their children’s money. The parentsare legally responsible for managing the money properly and using it for their children’s needs.

Q. Are parents financially responsible for the acts of their children?

A. The law on this varies from state to state. Some states make parents financially responsiblefor damage caused by their children, but the states may place limits on the amount of liability. InIllinois, for example, parents or guardians may be required to pay no more than $2,500 for the“willful or malicious acts” of minor children who harm another person or property.Generally, if a child has an auto accident while driving a parent’s car, the parent’s autoinsurance policy will cover the loss to the same extent it would if the parent had been driving thecar (although parents usually have to pay higher insurance premiums to cover young drivers).THE DUTIES OF ADULT CHILDREN TOWARD THEIR PARENTSAdult children normally have no responsibilities toward their parents. In return, their parentshave no duties toward them. However, there are exceptions. In some states, children mustsupport parents who otherwise would be on welfare. The children can avoid paying support ifthey can show that the parents did not care for them when they were underage. In some states,children may have to contribute to the support of parents in a state hospital or mental institution.However, the children’s ability to pay–not the actual costs of the care–usually determines howmuch they must pay.

Adoption

Q. How does one adopt a child?

A. Adoption laws vary from state to state. For adopting a child who is not related to theadoptive parent or parents, there generally are two types of adoptions: agency adoptions andprivate adoptions.

Q. What is an agency adoption?

A. As the name implies, the parents work though a licensed agency. The agency oftensupervises the care of biological mothers who are willing to give up their children, and it assistsin the placement of children after birth. Agencies screen adoptive parents–often extensively–before the adoption proceeds. Some agencies have long waiting lists of parents. Some agenciesalso specialize in placing children born in foreign countries.

Q. What is a private adoption?

A. Private adoptions bypass the use of agencies and they may help bypass the long waiting listsas well. The process may begin when people who seek to adopt a child contact an attorneywho specializes in adoptions. The attorney may work with physicians who are aware of womenwilling to give up children for adoption. Sometimes would-be parents will place ads innewspapers seeking women who are willing to place their babies for adoption.In most states, adoptive parents are allowed to pay a biological mother’s medicalexpenses and certain other costs during the pregnancy. But adoptive parents are not allowed topay the biological mother specifically to give up the child. The law treats this as a “black marketadoption,” the buying and selling of children, and it’s a crime in every state.

Q. Is court approval necessary for an adoption?

A. Yes. Court approval is needed for both agency and private adoptions. Many states alsorequire that the adoptive parents be approved by a social service agency.

Q. Can a biological mother revoke her consent to adoption?

A. Yes, but there are limits on her right to revoke consent. In most states, a biological motherwho initially consents to a child’s adoption before birth, may revoke that consent after birth. Inother words, the mother’s consent usually is not final or binding until a certain period of timeafter birth. In most states that time period is relatively short, such as two to eight days. If abiological mother consented to adoption during the proper period of time after birth, it is muchharder for her to revoke her consent. Following an after-birth consent, a biological mothergenerally may revoke her consent only if she can show that there was fraud or duress. Fraudcould be found if the adoption agency or attorney lied to her about the consequences of whatshe was doing. Duress might exist if a person at the adoption agency threatened the biologicalmother with humiliation if she did not sign. A biological mother’s change of heart normally is notenough by itself to revoke an after-birth adoption consent. Although a mother may feelemotionally drained and under stress after birth of a child that she plans to give up for adoption,that type of stress usually is not enough to revoke an adoption unless the person or agency thatobtained the mother’s consent used harsh tactics to obtain her consent.

Q. Is the biological father’s consent necessary?

A. Generally, yes–at least if the biological father is known. He should be notified of the birthand pending adoption so that he may consent or object. If the father is not known, the adoptionmay proceed without his consent (although adoptive parents can feel safer about the validity oftheir adoption if the biological father has been notified and agreed to it). If a biological father isnot notified, he may later contest the adoption if he acts within a certain period of time after thechild’s birth or adoption. (Six months is a typical time period, although the period variesbetween states.)

Q. What is a “related adoption”?

A. A “related adoption” is one in which a child’s relatives, such as grandparents or an aunt anduncle, formally adopt a child as their own. This might occur if the child’s biological parents aredeceased or are otherwise unable to care for the child.

Q. What is a stepparent adoption?

A. A stepparent adoption is one in which a child’s biological parent marries someone whowishes to adopt the biological parent’s child and is able to do so.

Q. What happens if the child’s other biological parent does not agree to the adoptionby the stepparent?

A. If a biological parent does not consent to the adoption of a child, the child cannot beadopted by another person unless a court first finds that the biological parent is unfit.

Q. What is the definition of an unfit parent?

A. Parental unfitness is determined by state law. Normally, an unfit parent is one who has failedto have regular contact with a child or to contribute to his or her support. A parent is also unfit ifhe or she has been abusive or has otherwise failed to provide adequate care for the child.

Q. What happens if a stepparent adopts his spouse’s child and the parents laterdivorce?

A. A divorce does not affect the legality of the adoption. The stepparent continues to have allthe rights and responsibilities of a biological parent, including a right to seek custody or visitationand a duty to support the child.

Q. Can a single person adopt a child?

A. Yes, although some agencies strongly prefer to place a child with a married couple. Otheragencies–particularly those dealing with children who might be hard to place–are willing toplace a child with a single person. Single-parent adoptions usually are possible in privateadoptions.

Q. Can lesbian or gay couples adopt a child?

A. Yes, in some states, such as New York and California, gay and lesbian couples are able toadopt a child.

Q. What is an “open adoption”?

A. An “open adoption” is one in which the adoptive parents agree to let the biological mother(or biological father) have some continued contact with the child after the adoption. This contactmight be periodic visits or an exchange of pictures and other information between the adoptivefamily and the biological parent or parents. The nature of the contact often is specified in theadoption agreement. Open adoptions have become more common as more birth mothers havebecome involved with choosing which adoptive family will receive their child. But openadoptions are a relatively new phenomenon, and in many states it is not certain whether an openadoption agreement is enforceable by the birth mother.

Q. Who has access to adoption records?

A. In most states, court adoption records are sealed and can only be opened by court order(although Oregon allows all adopted children access to their adoption records). Procedures andstandards for opening records vary by state. Increasingly, states require that certain nonidentifyinginformation, such as the medical history of the biological family, be made available tothe adoptive parents at the time of adoption. Some states also have registries where parties tothe adoption can agree to a later exchange of information, including names and addresses.

Q. What is the legal status of an adopted child?

A. An adopted child has exactly the same rights as one born to his or her parents. Similarly,adoptive parents have the same obligations to the child as they would to one born to them.

Q. What about medically assisted pregnancies?

A. As medical science advances, there are a variety of ways in which individuals who wish tobecome parents can be helped to do so by medically assisted means, including artificialinsemination and in vitro fertilization. These medical procedures have legal implications that varyby state. Generally, however, if both husband and wife consent to artificial insemination or invitro fertilization, the rights and duties of the husband, wife, and child will be the same as if thechild had been naturally conceived.

Q. What is surrogate parenthood?

A. In this arrangement, a woman agrees, with or without payment, to bear a child for anothercouple. This usually occurs when the wife cannot conceive or carry a child to term. In nearly allcases, through artificial insemination, the husband’s sperm fertilizes an egg belonging to either thewife or the surrogate mother. This makes the husband the biological father of the child. Thesurrogate mother agrees to give up all parental rights at birth. Then the wife of the biologicalfather legally adopts the child. A few states outlaw this arrangement when the surrogate motherreceives payment. Other states are considering laws that would restrict it. Personscontemplating such an arrangement should seek legal advice before entering into such anarrangement.

Paternity

PATERNITY AND MODERN SCIENCE

Paternity cases increasingly use scientific evidence. The blood tests used during much of the lastcentury were useful only up to a certain point. They might prove that a man was not the father ofa certain child, but could not prove that he was the father. New tests that sample the DNA(genetic material) of the child and the supposed father are nearly 100 percent accurate inproving or disproving paternity.

Q. May an unmarried mother legally force the father of her baby to support the child?

A. Yes. Both parents, married or not, have a duty to support the child. If the father admitspaternity, the mother should have him sign a statement to that effect. Then, if necessary, it will beeasier to force the father to help support the child. If he does not admit to being the father, themother may file a paternity suit against him. If this civil action succeeds, the court will require thefather to provide support. Sometimes the court also will require the father to pay for themother’s pregnancy and childbirth expenses.

Q. If a court decides that a man is a child’s father, how much will he have to pay insupport?

A. The law requires unwed parents to support their children the same as married parents. Childsupport guidelines, which have been enacted in all states, will determine the amount of support.As with children born to married parents, the obligation of support usually lasts until the child isan adult. If a father refuses to support his child, a court may garnish his wages, seize hisproperty or bank accounts, revoke his driver=s license or professional license, and perhaps evensend him to jail.

Q. What may a husband legally do if his wife bears a child that is not his?

A. The law presumes that a married woman’s child is her husband’s. He must support the childunless he can prove in court that he is not the father. Some states assume the husband is thefather no matter what proof he presents. These states do not allow a husband to disprovepaternity of a child born during the marriage.

Q. What is child neglect?

A. State laws make it a criminal offense for parents and legal guardians to fail to meet children’sbasic needs, including food, shelter, clothes, medical treatment, and supervision. Such failureconstitutes child neglect.

Q. What persons and what types of actions are covered by child abuse laws?

A. It is a crime for adults to abuse children in their care. Such adults include parents, fosterparents, legal guardians, other adults in the home, family members, and baby-sitters. Supervisingadults may not go beyond reasonable physical punishment. For example, adults who beatchildren so severely that they require medical treatment have violated these laws. Child abuselaws involve not only physical abuse (such as beatings or starvation), but other types of cruelty,such as sexual molestation and subjecting a child to extreme public humiliation.A person may be guilty of child abuse that he or she did not personally commit if thatperson had legal responsibility for the child and failed to protect the child from the abuser.

TAKING CHILDREN AWAY FROM THEIR PARENTSWhether or not a criminal case is brought, the state may remove children from the custody oftheir parents if there is reason to believe the parents are physically, sexually, or emotionallyabusing one or more of the children. The state also may remove the children if the parents areunable or unwilling to provide adequate care, supervision, and support.

Q. Who has a duty to report suspected child neglect and abuse?

A. The law compels a wide range of people who have contact with children to report suspectedchild abuse or neglect. Such people include doctors, nurses, teachers, social workers, andchildcare providers . A person who is required to report suspected neglect or abuse may facecivil or criminal penalties for failure to do so. In addition, states often encourage the reporting ofsuspected abuse by others such as neighbors and family members through special hot lines. Thelaws of most states encourage persons to make reports of abuse by granting them immunityfrom defamation suits by the accused parents if they make the report in good faith. Some stateskeep central lists of suspected child abuse cases. This helps identify parents, for example, whotake their children to different hospitals in order to conceal the evidence that they haverepeatedly abused their children.

Q. If the law takes children away from their parents, is the removal temporary orpermanent?

A. The goal usually is to reunite the family after correcting the problems that led to the removal.This, however, is not always possible. For example, if the parents make little or no effort toimprove the children’s care, then the state may ask a court to end all parental rights. If thishappens, the legal bonds between parents and children are completely and permanently cut, andanother family may adopt the children.